Balvinder Singh Sodhi vs Mahender Singh
1997 Latest Caselaw 893 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner is aggrieved by the order dated 30th April, 1997 of the Additional District Judge, Delhi rejecting the plaint of the petitioner on an application moved by the defendants under Order 7, Rule 11 of the Code of Civil Procedure, on the ground of the same being barred by limitation. The learned Additional District Judge held that the plaint was instituted against a police officer beyond the three months period stipulated under Section 140 of the Delhi Police Act.

(2) The petitioner had filed a suit for damages against respondent No. 1 who was the Station House Officer, Police Station, Vasant Vihar, New Delhi; respondent No. 2, being Deputy Commissioner of Police and the Delhi Administration through the Lt. Governor, imp leaded as respondent No. 3.

(3) The petitioner claims himself to be a person of repute, being President of the Traders' Association. He had a dispute with one Shri. H.C. Bagga, to whom he had let out a portion of his property. There was litigation between them. The petitioner alleges that he made several complaints to respondent No. 1 but no need was paid to them. The respondent No. 1, in connivance with the tenant H.C. Bagga, instead of protecting the petitioner registered false First Information Report bearing No. 81/92 under Sections 325/341 of the Indian Penal Code and Fir No. 156/92 under Sections 452/324 of the Indian Penal Code, against the petitioner. Not only this, respondent No. 1 maliciously recommended extemment of the petitioner from the Union Territory of Delhi. The initiation of extemment proceedings was outcome of conspiracy hatched between respondent No. 1 and tenant. These proceedings were later dropped by the DeputyCommissionerofPolice(South West), Delhi.The petitioner perforce had to even file a writ petition in the High Court, for quashing the said proceedings, wherein a show cause notice was issued culminating in the dropping of the extemment proceedings as noted above.

(4) Based on the averments made in the plaint some of the relevant dates for accrual of cause of action may be noticed : On 1.7.1992, recommendation was made by the respondent No. 1 to the respondent No. 2 for extemment of the petitioner. Notices were issued by the High Court on 21.8.1992, in the writ petition for quashing of proceedings. Finally on 25.9.1992, when the extemment proceedings Were dropped. The one month statutory period of notice also expired within a month of 13.11.1992, say by 12.12.1992. The suit has been filed on 25.1.1993.

(5) Section 140 of the Delhi Police Act reads as under : 140. Bar to suits and prosecutions-(1) In any case of alleged offence by a police officer or other person, oro fa wrong alleged to have been done by such police Officer or other person, by any act done under colour of duty or authority or in excess of any such duty or authority, or wherein it shall appear to the Court that the offence or wrong if committed or done was of the character aforesaid, the prosecution or suit shall not be entertained and if entertained shall be dismissed if it is instituted, more than three months after the date of the act complained of:

(1)PROVIDED that any such prosecution against a police officer or other person may be entertained by the Court, if instituted with the previous sanction of the Administrator, within one year from the date of the offence.

(2)In the case of an intended suit on account of such a wrong as aforesaid, the person intending to sue shall give to the alleged wrongdoer not less than one month's notice of the intended suit with sufficient description of the wrong complained of, and if no such notice has been given before the institution of the suit, it shall be dismissed.

(3)The plaint shall set forth that a notice as aforesaid has been served on the defendant and the date of such service and shall state what tender of amends, if any, has been made by the defendant and a copy of the said notice shall be annexed to the plaint endorsed or accompanied with a declaration by the plaintiff of the time and manner of service thereof.

The plea which found favour with the learned Additional District Judge was that even if the last date on which the cause of action could be said to have arisen was taken on 25.9.1992, the present suit being filed on 25.1.1993, was beyond the prescribed period of 3 months in terms of Section 140(1) of the Delhi Police Act even if benefit of exclusion of the statutory period of notice was taken.

(6) I have heard Mr. S.K. Bhalla, learned Counsel for the petitioner. He has argued that the limitation prescribed in Section 140 of the Delhi Police Act would not apply since the acts of the respondent complained of in the suit were not covered by official acts or duties done in good faith. The argument being that the registration of false cases and the externment proceedings under Delhi Police Art, would not be acts done in pursuance to official duties or in the colour of official duty. Accordingly, Section 140 of the Delhi Police Act would not be attracted and it would be residuary limitation for one year, for a civil wrong, under the limitation act which would apply.

(7) Learned Counsel for the petitioner has cited number of authorities, wherein it was held that acts or offences committed could not be said to be in discharge of official duty and no prior sanction under Section 197 of the Code of Civil Procedure was necessary. The relevance of the cited decisions is for ascertaining the principles and tests to be applied in determining whether in committing the offences/wrongs,' the acts of the officer could be said to be done under the colour of duty or authority and in discharge of his official duty. These decisions may be noticed.

(I)Learned Counsel for the petitioner first cited Dr. Hari Ram Singh v. Emperor . This was a case of a public servant embezzling property entrusted to him and thereby committing breach of trust under Section 409 of the Indian Penal Code. He was also accused of committing offences for falsifying books of accounts, punishable under Section 477A of the Indian Penal Code. The Court held that the consent for prosecution was necessary for offence under Section 477A, but was not necessary for prosecution under Section 409 of the Indian Penal Code. The Court observed as under:

"When a public servant simply embezzles some property entrusted to him and thereby commits a criminal breach of trust under Section 409, he is not doing an act, nor even purports to do an act in execution of his duty; when he commits the act, he does not pretend to act in the official discharge ot his duty. A case like that would not ordinarily fall within the scope of Section 270(1). But an offence under Section 477A, Penal Code, is committed if an officer or servant or anyone employed or acting in such capacity, wilfully and with intent to defraud falsifies any book or account. Thus, where it is his duty to maintain a record or a register and in maintaining that register he makes some entries which are false to his knowledge, he is certainly purporting to act, though not actually acting, in the execution of his duty, because he is making certain entries in the register knowing them to be false. Hence, for prosecution under Section 409 the consent of Governor is not necessary but for prosecution under Section 477A consent is necessary".

The said decision would not advance petitioner's case as in the instant case it cannot be said that the petitioner was not acting in discharge of his duty or it was not an act done under the colour of duty or authority. The investigation of the offences/ complaints lodged against the petitioner was the duty of the respondent No. 1. Besides, initiation of extemment proceedings would also come within his duty and if the said proceedings were initiated mala fide then it would, perhaps, fall within the acts done under the colour of duty. Applying the ratio of the aforesaid authority, it would be seen that even if the allegations of the petitioner are taken to be true, the acts complained of would be akin to those done while purporting to discharge duty, though not actually acting in the execution of his duty, as was found by the Court in the offence under Section 477A.

(II)Second case cited was State v. Sube Singh (1985 (2) Rcr 524). In this case, a Police Officer was accused of disorderly riotous behaviour. The officer, though in uniform and in possession of a warrant, was found to be heavily drunk. The Officer was accused of the offence committed under Sections 91 and 93 of the Delhi Police Act. The Court held that in the peculiar facts of this case, sanction was not required. Posting the question whether the offence committed by the respondent could be said to have been committed while acting or purporting to act in the discharge of his official duty, the Court observed as under:

"In view of the peculiar facts of this case, we are of the view that the offence committed by the respondent cannot be said to have been committed by. him under the colour of duty. In the present case, one has to remember that even though the accused was in the possession of a warrant of attachment, he went to execute the same during the night hours and in a mental state which was highly unbecoming of a police official. The simple fact that he was in uniform and he was in possession of a warrant would not confer a licence upon him to behave in any manner he likes. We cannot take wooden attitude in such matters and it can never be said that a police officer is at liberty to abuse and use indecent language and behave in disorderly manner while he is supposed to be on duty".

The passing reference in the said decision to the non-applicability of Section 140 of the Delhi Police Act can be of no assistance to the petitioner. The Court simply observed that Section 140 simply lays down the period of limitation, while considering the question of sanction under Section 197. It is in that context that the observation that Section 140 would not be applicable as it prescribed only the period of limitation, was made. In the instant case, we are concerned with the institution of a suit for damages where the question of limitation is squarely applicable. As regards the non-requirement for sanction, the observations of the Division Bench are self-explanatory. In the peculiar facts of that case, Court found the officer/accused under intoxication, could not be said to be purporting to act in the discharge of his official duties.

(III)Learned Counsel for the petitioner next relied on the decision of the Apex Court in Shamboo Nath Mishra v. State of UttarPradesh, (1997 (2) Crimes 26 SC). The Court in the said case held that no prior sanction was necessary when a public servant was alleged to have committed an offence of fabrication of record for misappropriation of public funds as he could not be said to have acted in discharge of his official duty. The Court observed that the essential requirement postulated for sanction to prosecute the public servant is that the offence alleged against the public servant must have been done while acting or purporting to act in the discharge of his official duties. In such a situation, it postulates that the public servant's act is in furtherance of his performance of his official duties. If the act or omission is integral to the performance of public duty, the public servant is entitled to the protection under Section 197(1) of the Code of Criminal Procedure. The protection of sanction is an assurance to honest and sincere officers to perform their duty honestly and to the best of their ability. The threat of prosecution demoralised an honest officer. However, performance of public duty under colour of public duty cannot be camouflaged to commit crime. The Court held that in the instant case it was not the official duty of the public servant to fabricate the false record and misappropriate funds in furtherance or discharge of his official duties. .The official capacity only enabled him to fabricate the record or misappropriate the public fund. It does not mean that it is integrally connected or is inseparably interlinked with the crime committed in the course of some transaction, as erroneously believed by the High Court.

(IV)Reference may also be invited to the observations made by the Apex Court in the case S.P. Saha v. M.S. Kochar . The Apex Court in the said case observed as under: "The sine qua non for the applicability of Section 197 is that the offence charged, be it one of omission, must be one which has been committed by the public servant either in his official capacity or under colour of the office held by him". "The words, "any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty employed in Section 197(1) are capable of a narrow as well as wide interpretation. If these words are construed too narrowly, the section will be rendered altogether sterile, for,

"IT is no part of an official duty to commit an offence, and never can be." in the wider sense, these words will take under their umbrella every act constituting an offence, committed in the course of the same transaction in which the official duty is performed or purports to be performed. The right approach to the import of these words lies between these two extremes. While on the one hand, it is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection of Section 197(1) an act constituting an offence, directly and reasonably connected with his official duty, will require sanction for prosecution under the said provision. It is the quality of the act that is important and if it falls within the scope and range of his official duties, the protection contemplated by Section 197 will be attracted."

The question whether an offence was committed in the course of official duty or under colour of office depends on the facts of each case. One broad test for this purpose is whether the public servant, if challenged, can reasonably claim, that what he does, he does in virtue of his office".

(V)Reference may also be invited to a decision of a Single Judge of Court in K.L. Verma v. State, 19971 AD(Delhi) 289 The learned Single Judge while dealing with the interpretation and applicability of Section 197 of the Code of Civil Procedure, observed as under:

"To attract the provisions of Section 197 of the Code, the Court must be satisfied that the alleged offences have been committed by the public servant while acting or purporting to act in the discharge of his official duties. For this purpose, the allegations made in the complaint are very much relevant to appreciate whether the acts complained of are directly concerned or reasonably connected with official duties so that, if questioned, the public servant could claim to have done these acts by virtue of his office, that is to say, there must be a reasonable connection between the act and the discharge of official duties. It is in this context that the words "purporting to act in the discharge of official duties" assume importance".

"In the present case, it was the part of the duty of the petitioner to investigate into the irregularities under the Foreign Exchange Regulation Act as and when they came to his notice and if in the discharge of such duties he has allegedly abused his official position during the course of his functioning as an officer of the Directorate of Enforcement, obviously he did this in the purported discharge of his duties as Director of Enforcement".

"I am, therefore, of the opinion that the alleged acts of the petitioner were directly and reasonably connected with his official duties or in any case in the purported exercise of his official duties as an officer of the Directorate of Enforcement and, in may view, the same would attract the protection of Section 197(1) of the Code".

(8) Applying the aforesaid principles enunciated in the above judicial pronouncements, it would be seen that the investigation of the complaints lodged by the said tenant of the petitioner was the duty of the respondent No. 1. The initiation of extermment proceedings would also fall within his duties and if the said proceedings were initiated mala fide, then it would perforce fall within the colour of duty. The acts complained of against respondent No. 1 were directly and reasonably connected with his official duties or in any case in the purported exercise of his official duties. May be the respondent acted in excess of his duties. However, the nature of the acts complained were integral to and had a reasonable nexus to the performance of his public duty. Accordingly, it cannot be said that the acts complained were of such a nature as had no nexus and were not integral or connected with the discharge of his duties so as to render Section 140 inapplicable. Section 140 of the Delhi Police Act is clearly attracted.

(9) Learned Counsel for the petitioner lastly relied on the decision in Arjan Singh & Ors. v. Union of India & Ors., Air 1987 Delhi 165 in support of his contention that the question of limitation depended upon certain facts arising in the suit and, accordingly, the same should have been decided on merits during trial. The said plea is misconceived. The ratio decidendi of the cited decision, at para 12, itself lays down that "if the plaint itself shows that the claim is barred by time, then the plaint can be rejected. However, if the real question of limitation is connected with the merits of the claim in the suit, then it has to be tried alongwith the other issues." I have already reached the conclusion that Section 140 of the Delhi Police Act is applicable to the case. On the basis of the averments made in the plaint itself regarding accrual of cause of action, it is clear that the suit is barred by limitation, as noticed in paras 4 and 5 hereinbefore, and no evidence is necessary in that regard. Accordingly, the present authority is of no assistance to the petitioner.

(10) In view of the foregoing discussion, the revision petition has no merit and is dismissed.